McDonald Secures Key Procedural Win in Constitutional Battle Over Bill 6

In a significant development in the constitutional challenge against Alberta’s Public Health Amendment Act (Bill 6), Chad Dallas McDonald has won a procedural victory that could shape the outcome of the case. The Court of Appeal of Alberta granted Mr. McDonald an extension to file new evidence, clearing the way for a fuller examination of his claims against the controversial legislation.

Mr. McDonald argues that Bill 6 was enacted in bad faith to shield the Alberta government from liability for its operational decisions during the COVID-19 pandemic. At the heart of his challenge is the assertion that the amendment reclassified operational decisions – such as those made by the Chief Medical Officer of Health (CMOH) – as core policy decisions, effectively granting immunity from negligence claims. He contends this legislative maneuver not only undermines due process but has a broader unconstitutional and tyrannical effect on public rights.

The Court’s Ruling

The Court of Appeal’s decision did not weigh in on the substantive merits of Mr. McDonald’s arguments or the proposed evidence. Instead, the ruling focused on the procedural question of whether an extension should be granted. The court found that Mr. McDonald’s application had a reasonable prospect of success, satisfying the low threshold required for such rulings.

The court also addressed His Majesty the King’s (HMK) objection to the application, which argued that the proposed evidence would not alter the substantive outcome of the case. The court dismissed this as irrelevant to the current procedural ruling. Notably, it rejected HMK’s attempt to have the case management officer decide on issues reserved for the panel of judges who will ultimately hear the constitutional challenge.

By granting the extension, the court ensured Mr. McDonald could submit evidence drawn from the related class action, Ingram et al. v. His Majesty the King in Right of Alberta. Mr. McDonald contends this evidence supports his claim that Bill 6 was crafted to retroactively protect the government from liability, demonstrating bad faith in its enactment.

The Role of Bad Faith

While bad faith is not required for Mr. McDonald to argue that Bill 6 is unconstitutional in its effect on public rights, it is central to his secondary claim of tort liability. Demonstrating bad faith is necessary for holding the government liable for damages stemming from the legislation. Mr. McDonald’s proposed evidence, which he argues highlights Alberta’s intent to shield itself from accountability by attempting to argue that its public health orders were core policy in defence of the class action, could play a pivotal role in proving this element of his case.

Broader Implications

This procedural ruling underscores the high stakes of the constitutional challenge. If Mr. McDonald succeeds, the court could strike down Bill 6 as unconstitutional, potentially altering the legal landscape for how governments balance immunity with accountability. His case also raises fundamental questions about the limits of legislative power and the protections owed to individuals and businesses in the face of government overreach.

With the extension secured, Mr. McDonald will file the motion to admit his new evidence by December 2, 2024. The challenge now moves closer to a substantive hearing, where the admissibility and relevance of the evidence – and the broader constitutional questions – will take center stage. This key ruling represents a significant administrative win for Mr. McDonald in his fight to hold Alberta’s government accountable.